Legislature(2003 - 2004)
03/18/2004 03:31 PM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 414(JUD)-U.S.SENATE VACANCY/DEF OF POLITICAL PARTY
CHAIR GARY STEVENS announced CSHB 414(JUD) to be up for
consideration and asked Representative McGuire's aide to
identify himself.
HEATH HILYARD, staff to Representative Lesil McGuire, sponsor,
advised that the bill does two things. First, it addresses the
process for filling U.S. Senate vacancies in Alaska statute. The
22nd Legislature changed the policy to allow the governor to
make an appointment to fill a vacancy instead of holding a
special election, as was previously the case. HB 414 makes the
policy change again to redress the issues that were brought up
including the concern about legislative intent regarding
circumventing the initiative process. The sponsor, on behalf of
the House Judiciary Committee, wants to go on record to refute
the allegation. HB 414 ensures that the people have the ability
to fill these vacancies through a special election.
Second, the bill addresses the definition of political parties.
Currently political parties are recognized after receiving three
percent of the total vote in a gubernatorial election. The
version of the bill under consideration changes that to include
congressional elections as well.
He further explained that sections 6 through 8 are housekeeping
sections with regard to inserting "United States senator" in the
language and enumerating the process by which special elections
are conducted.
CHAIR GARY STEVENS asked for verification that there is already
a process for filling a vacancy for a U.S. representative and
this addresses U.S. senate vacancies in the same manner
MR. HILYARD agreed.
SENATOR JOHN COWDERY thought he heard that the governor would
still have the authority to temporarily appoint a replacement.
MR. HILYARD pointed to section 3, AS 15.40.145, which
specifically states that, "the governor may, at least five days
after the date of the vacancy but within 30 days after the date
of the vacancy," make a temporary appointment.
SENATOR COWDERY asked, "What's the limit on the days left to
require an election?"
MR. HILYARD read section 2 of the bill and interpreted it to
mean that there would be no more than a 90-day gap.
SENATOR HOFFMAN asked what happens if the people like the
current system and they want the governor to make the decision
because it's more cost effective and quicker. He opined that
this legislation circumvents the people that like the system.
MR. HILYARD replied this is in response to the Trust the People
Initiative and would change the system back to what it was. If
Alaskan voters agree with the current system, they can vote no
on the ballot initiative.
SENATOR HOFFMAN said his point is that if this passes there
won't be a ballot.
MR. HILYARD said this legislation was introduced in response to
voters that signed a ballot initiative. Although he understood
the point, he said they haven't received much public response in
support of the current system.
SENATOR HOFFMAN insisted that the people should be able to
decide whether they like the current system in which the
governor makes the appointment versus spending time and money on
a special election. "If we proceed with this bill we'll never
find out."
SENATOR GRETCHEN GUESS agreed with Senator Hoffman's point that
the bill is circumventing the public. She argued that everyone
that signed the petition didn't do so because they want a
change. Some people in her district want to vote to keep the
process the same.
With regard to Senator Cowdery's question, she said that she
read the statute and she understands that if a vacancy happens
on May 1 there would be a special election, a primary election,
and a general election. "If it's 90 days within the primary,
it's the primary. If it's 90 days within the general, it's the
general." She asked for verification that if vacancies occur in
the late fall then there would be three elections. "As you know,
it's hard enough to get people to the primary let alone the
general." She asked if they've discussed that at all.
MR. HILYARD said he didn't have a copy of the existing statute
with him, but he didn't think they'd addressed that particular
point. He understood that section 2, which revises AS 12.40.140,
would potentially address that point.
SENATOR GUESS said it addresses it if the vacancy occurs within
90 days and the statute addresses it if it's within 90 days of a
primary. "But if you're outside of that at all you're going to
have ... three elections backed up in a year."
SENATOR COWDERY chimed in to say you're not elected in a primary
you're just a candidate.
SENATOR GUESS replied, "Under the current statute if the vacancy
occurs within 90 days of the primary, then the primary would be
the special election."
SENATOR COWDERY was still unclear.
MR. HILYARD admitted he hadn't reviewed the provision closely
enough to be able to answer definitively.
CHAIR GARY STEVENS was comfortable with Senator Guess's
interpretation. "It's pretty clear that there would be multiple
elections."
SENATOR GUESS asked if the person that's appointed could run for
the office in the special election.
MR. HILYARD asked Senator Guess to bear with him a moment.
CHAIR GARY STEVENS commented that he saw nothing that would
preclude...
MR. HILYARD interrupted to say, "I was going to come to the same
conclusion. I don't see anything that specifically precludes
that."
SENATOR GUESS asked if House Judiciary made that conscious
decision because it's an interesting catch-22. The appointed
individual could then run as an incumbent after as few as 60
days in office.
MR. HILYARD said he didn't remember that specific issue being a
topic of discussion at that particular hearing. He couldn't say
whether it was discussed at any other time. "So I would say, my
guess would be, no it was not a conscious decision to exclude
that or to exclude that language that you're discussing."
SENATOR GUESS said she would appreciate a response on that point
from the sponsor and the committee. "It can definitely be used
to gain the system in a way that I don't think the public
necessarily wants."
MR. HILYARD agreed to look back at the committee record to try
to determine whether or not that point was addressed or any
concern expressed.
SENATOR GUESS noted that the statute still uses mail, delivery
or telegram as the options for nominating and communicating. In
fact, "At this point, no one could put themselves into this race
by fax. That's the point that I'm making." Since some of the
sections were housekeeping measures, she suggested it might be
appropriate to clean up that sort of language.
MR. HILYARD felt confident that that might have been an
oversight on the part of House State Affairs and House Judiciary
Committees.
SENATOR GUESS referred to page 2, line 7 and asked whether the
term qualified goes back to constitutionally qualified because
she saw nothing in statute on qualifications.
MR. HILYARD was fairly certain that refers to age and residency
requirements.
SENATOR GUESS suggested making that clarification.
MR. HILYARD remarked that inserting "constitutionally" before
"qualified" might work.
SENATOR GUESS wondered why AS 15.40.075 was being repealed
because the rest of the sections made sense. She acknowledged
that she was the only member with the statute book and explained
that the section refers to, "how someone declares in a
prevailing time and some of the specifics that are going on."
She asked Mr. Hilyard to get back to her on that point.
MR. HILYARD conceded he didn't know why that was included, but
he thought it was from the drafters.
SENATOR GUESS said she knew the answer to the following but,
"Although I see the legislative intent, I want to get it on the
record that if this bill passes, and [indisc.] it's
substantially similar so the initiative is pulled off the
ballot, there is nothing that is stopping the legislative body
from passing this next November. It just takes three days to
pass a bill if people wanted to do that. And if the initiative
goes through it would be two years before a statute change. Am I
correct?"
MR. HILYARD said that is correct. One Legislature can't bind
another so even though that's in the intent language they can't
provide for that statutorily.
SENATOR GUESS stated for the record that her biggest concern is
that this might develop the same way the initiative to increase
and inflation proof the minimum wage did. The Legislature passed
a bill similar to the initiative and then removed the inflation
proofing the following session. "I think it's that type of
gerrymandering, and I use that in the broad sense, that really
gets the public not trusting us as legislators."
CHAIR GARY STEVENS noted that he was aware that the newspapers
wrote about the Legislature repealing the inflation proofing the
next year. He asked Mr. Hilyard to verify that the sponsors of
HB 414 said that that was not their intention.
MR. HILYARD replied that is correct. That isn't the intent and
Representative McGuire has made it clear that any effort to make
that change would be, "over her dead body."
SENATOR GUESS said thanks for the clarification and she trusts
Representative McGuire at her word, but she heard the same
argument from the sponsors on the minimum wage bill and it
happened anyway. "And there wasn't a vote to try to leverage
that support or even find out where people were with inflation-
proofing and now it's gone."
DON ROBERTS JR. testified via teleconference from Kodiak to say
that he took issue with the definition of political party
saying, "I don't think a vote for a particular candidate should
be deemed support for a particular party. And I don't think a
person should be put in a dilemma of voting for a particular
candidate by supporting their party. I think it stifles
political discourse and it results in a mindless 'vote for me'
approach to campaigning that the people have to suffer through
each election cycle."
MR. HILYARD pointed out that page 4, lines 11-13 is part of the
definition of "political party" and removing it would be "a
substantial change in policy and one that was not necessarily
our intent to completely eliminate."
SENATOR GUESS said Mr. Roberts made a good point. She understood
why the definition is being expanded, but she joined him in
asking why have [the definition] at all.
MR. HILYARD explained that recognizing a particular party by
tying the votes an individual candidate receives has a long-
standing policy. He wasn't sure why that definition was used,
but "this expands it to give parties more opportunity to be
recognized, thus a greater opportunity to participate in the
political process."
SENATOR GUESS asked if he knew the gubernatorial election in
which this began.
MR. HILYARD said he didn't have that information.
There was no further public testimony.
CHAIR GARY STEVENS thanked Mr. Roberts for bringing the issue to
light then asked if there were further comments or questions.
SENATOR GUESS made a motion to adopt a state affairs
indeterminate fiscal note. "I think we've talked about the
multiple elections you could have in a year. I'm not sure why
this bill has a zero fiscal note on it; it's really
indeterminate. We don't know the cost to the state of this bill.
We keep having multiple fiscal notes that say zero and it really
isn't there, it's indeterminate. So I will move that at this
time."
CHAIR GARY STEVENS asked her to restate her motion.
SENATOR GUESS said she was moving a state affairs indeterminate
fiscal note on to HB 414.
CHAIR GARY STEVENS asked if there was any discussion and there
was none.
SENATOR HOFFMAN noted the bill says it has no fiscal impact on
the Division of Elections, but he assured members that a special
election would cost money and the department should know what
the cost would be. "At least, at a minimum, we have to have an
indeterminate fiscal note."
SENATOR COWDERY said, "That's assuming there is an election..."
but there's no assurance there would be an election.
CHAIR GARY STEVENS made the point that if the election were to
take place at the same time as a primary or general election,
then it would be difficult to separate the individual costs.
SENATOR COWDERY added, "I don't even know how you come up with
the fact that you're even going to have an election."
SENATOR GUESS remarked that the previous discussion
substantiates why the fiscal note should be indeterminate. "You
don't know one way or another ... and that's an okay thing, but
I think it needs to be reflected in this bill."
CHAIR GARY STEVENS restated the motion and called for a roll
call vote.
The motion to adopt the indeterminate fiscal note failed 2 to 3
with Senators Hoffman and Guess voting yea and Senators Cowdery,
Stedman and Chair Gary Stevens voting nay.
CHAIR GARY STEVENS asked if there was further discussion.
SENATOR GUESS asked if the committee was going to clean up the
bill.
CHAIR GARY STEVENS announced that he would prefer that the bill
move on to the Judiciary Committee with the issues that were
brought up. He asked for a motion.
SENATOR COWDERY motioned to move CSHB 414(JUD) to the next
committee of referral with individual recommendations and
accompanying zero fiscal note.
SENATOR GUESS objected and said she would speak to her
objection.
It's a slight disappointment in this committee as the
issues that I brought up are all state affairs issues;
they're not judicial issues except for maybe the
qualified voter, which is a judicial issue. This body
should be doing its work and not passing a bill to
judiciary, per our Senate President, when there's
issues about the appointment and whether or not
someone who's appointed can run and some of these
other cleanup matters and the fact that some of the
statutes might be wrong. So, it's a slow process -
besides the fact that it circumvents the public.
SENATOR COWDERY said the sponsor's representative is aware of
the questions that were raised and he would provide the answers
to the next committee.
MR. HILYARD confirmed that he would do so adding that he would
be happy to personally brief Senator Guess.
SENATOR GUESS thanked Mr. Hilyard.
SENATOR HOFFMAN suggested that there wasn't a time crunch and he
could see no reason not to hold the bill and work on it. "I
didn't understand that we were going to be moving this today,"
he said.
CHAIR GARY STEVENS stated that he would like to move the bill
that day and unless he heard otherwise that's what would happen.
SENATOR HOFFMAN asked if the committee could take a few minutes
to amend the bill.
CHAIR GARY STEVENS called an at-ease for a few minutes to
discuss amendments.
HB 414-U.S.SENATE VACANCY/DEF OF POLITICAL PARTY
CHAIR GARY STEVENS announced that the committee would return to
HB 414.
SENATOR GUESS stated that, "In a futile attempt to actually make
a good bill - even though it seems that all you guys want to do
is take this off the ballot - I move to delete page 3, line 31
to page 4, line 10.
CHAIR GARY STEVENS asked her to repeat.
SENATOR GUESS restated her amendment.
CHAIR GARY STEVENS stated that the motion was before the
committee and he would like Mr. Hilyard to respond.
HEATH HILYARD reintroduced himself and said that the sponsor
would not object to that amendment. He noted that SB 356, a
comprehensive election reform bill, had similar language, but
for HB 414 they had no objection to the removal.
CHAIR GARY STEVENS asked him to tell the committee exactly...
SENATOR COWDERY interrupted to say that he didn't write down the
lines.
SENATOR GUESS asked if he wanted her to say what the amendment
would do.
SENATOR COWDERY said no, just repeat so he could read it.
SENATOR GUESS repeated, "page 3, line 31 to page 4, line 10."
CHAIR GARY STEVENS asked her to explain the amendment.
SENATOR GUESS explained that it takes away the 3 percent
requirement for a political party to be recognized. "As you
know, in Alaska 65 percent are registered non-party. People vote
for the person not the party."
CHAIR GARY STEVENS stated that he was speaking for the amendment
and he believes it's a good idea.
CHAIR GARY STEVENS called for a roll call vote. The amendment
passed 4 to 0 with Senators Guess, Stedman, Cowdery and Chair
Gary Stevens voting yea.
CHAIR GARY STEVENS asked if there were further amendments.
SENATOR GUESS remarked that in the short amount of time she had
to make the amendment she would trust the sponsor to work on
clean-up language. Because she thought it was an appropriate
state affairs issue, she would make a conceptual amendment.
She made a motion to adopt conceptual amendment 1, "which is
that the temporary appointment may not run for the vacancy."
SENATOR STEDMAN asked for her reasoning.
SENATOR GUESS noted that she was pleased that the sponsor was
present because there was similar discussion in the House. She
explained that she is worried that the temporary appointee has
an incumbency advantage. She thought that was at odds with the
intent, which is to make a clean process that is separate from
an appointment.
SENATOR COWDERY commented that all sitting legislators are
incumbents and two of the committee members were appointees. He
simply didn't like the amendment.
CHAIR GARY STEVENS recognized the sponsor.
REPRESENTATIVE McGUIRE told Senator Guess that she understood
her reasoning, but it wasn't her intent that the process would
be manipulated to that extent. She said she was uncomfortable
placing that restriction and if the appointee is the person the
people want to elect in the special election, then she wants the
people's will to be exacted. She opposed the conceptual
amendment.
CHAIR GARY STEVENS asked Senator Guess if she had any comments.
SENATOR GUESS said it was a philosophical difference and there
are good arguments on both sides. Her view is that the appointee
would know from the beginning that they were filling a temporary
roll.
SENATOR COWDERY said his view is that would be taking away a
citizen's right if that stipulation were made for appointments.
CHAIR GARY STEVENS recapped that the amendment before the
committee says that a temporary appointee could not run for that
office in the special election. He asked for a roll call vote.
The amendment failed 1 to 3 with Senator Guess voting yea and
Senators Cowdery, Stedman and Chair Gary Stevens voting nay.
CHAIR GARY STEVENS asked Senator Guess if there were other
issues she wanted to address.
SENATOR GUESS replied there were, but she would work with the
sponsor on some clean up.
SENATOR STEDMAN asked Senator Guess to get back to the members
regarding any clean up language they might agree to.
SENATOR GUESS said she would do so and asked if she could use
the services of the Senate State Affairs Committee to order a CS
that would reflect the clean up language.
CHAIR GARY STEVENS said, "Okay and before us then a motion on
the CS for HB 414(JUD) as amended."
SENATOR COWDERY asked for verification that there was one
amendment.
SENATOR GUESS said that was correct.
SENATOR COWDERY said I move...
SENATOR GUESS called a point of order stating, "I think you need
to remove your last motion because we made amendments and we had
a motion on the table. So then Senator Cowdery can make the new
motion. You have a motion on the table to move, correct?"
CHAIR GARY STEVENS questioned, "Do we have a motion on the table
to move it?"
SENATOR COWDERY told Senator Guess he missed her point.
SENATOR GUESS said, "I think you just need to remove your
previous amendment to move and re..."
CHAIR GARY STEVENS said, "Because if we remove the previous
motion then now we're going to deal with the motion as amended.
Okay if you would do that Senator."
SENATOR COWDERY said, "I'll remove my object."
CHAIR GARY STEVENS said he was ready for a motion.
SENATOR COWDERY made a motion to move CSHB 414(JUD) as amended
forward with individual recommendations and the accompanying
fiscal note.
SENATOR GUESS objected.
CHAIR GARY STEVENS called for a roll call vote. The motion
passed 3 to 1 with Senators Cowdery, Stedman and Chair Gary
Stevens voting yea and Senator Guess voting nay.
SCS CSHB 414(STA) moved from committee and the meeting was
adjourned at 6:15 pm.
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